Worker’s aggressive response was a breach of Code of Conduct and warranted summary dismissal

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. In our previous blog “Oh Behave!: What is a workplace Code of Conduct?” we discussed the typical content of a Code of Conduct and how to utilise this Code to uphold the values of the organisation and provide a behavioural framework in the workplace.

For some workplaces, it may also be appropriate for organisations to regulate the out-of-hours conduct and behaviour of employees. In Weir v Bechtel Construction (Australia) Pty Ltd [2017] FWC 6073, the Fair Work Commission (FWC) considered an unfair dismissal application from an employee who was terminated for serious misconduct because of his involvement in a fight at a village near their place of work. Noting it was a somewhat remote location, the employer maintained strict rules about violent and anti-social behaviour in the village and local community.

The employee was having a drink with colleagues when another employee walked past, took the employee’s cowboy hat from his head and walked away with it. The employee went to retrieve his hat and in doing so grabbed the other employee by the shirt and “chest bumped” him. In retaliation, the other employee then punched him in the face three times.

The employer terminated the employee’s employment because it was satisfied that his conduct was in breach of, and inconsistent with its Code of Conduct, Project Work Rules and the Wheatstone Village “Golden Rules” (the Golden Rules) which set out the expected standards of conduct. The Code and the Work Rules provided that serious misconduct included fighting or other offensive, intimidating or violent behaviour regardless of whether it was initiated or in retaliation. The Golden Rules provided that a person found fighting would have their accommodation withdrawn.

The employee claimed that his summary dismissal was harsh, unjust and unreasonable. The employee disputed that:

He was involved in a fight or engaged in offensive, intimidating or violent conduct;

The employer’s Code, Work Rules or Golden Rules were reasonable;

He was obliged to comply with the Code, Work Rules or Golden Rules; and

His conduct was in breach of the Code, Work Rules or Golden Rules.

The employee also argued that there was not a valid reason for his dismissal because there were extenuating circumstances in that he did not instigate the incident and acted in self-defence.

The FWC dismissed each of the employee’s submissions. It found that the employee did engage in a fight or intimidating conduct and was a willing participant in the fight as his “chest bump” was not an act of self-defence. The FWC commented that:

What was initially a stupid act by the unknown person then quickly escalated into an interaction that was open to be characterised as an aggressive or violent confrontation. The provocation by the unknown person was in my view insufficient to justify or… provide explanation for, the Applicant’s conduct.

In relation to the Code, Work Rules and Golden Rules, the FWC held that the employer had a responsibility to keep employees and residents in the village safe and accordingly it was reasonable for the employer to set behavioural standards for employees within the village outside of work hours.

The FWC also noted that the employer had consistently made employees aware of their obligations under the Code, Work Rules and Golden Rules and the consequences for breaches. In particular, it was the employer’s practice to require employees to sign the Golden Rules each time they returned to the Project site, confirming that it would not tolerate fighting and threatening behaviour. The rules in relation to fighting were also strictly enforced; the employer provided evidence that 138 employees over five years had been removed from the Project for engaging in fighting or altercations in breach of the Code and/or Work Rules.

As the employee was in breach of the standards and there were no extenuating circumstances, the FWC was satisfied that there was a valid reason for dismissal. The FWC was also satisfied that the employee’s wilful and intentional actions in fighting in breach of the employer’s behavioural standards warranted summary dismissal.

The application was dismissed.

Lessons for employers

This case demonstrates how a Code of Conduct and other policies can and should be used to set behavioural standards. The employer’s employment contract, Code of Conduct, Work Rules and Golden Rules all clearly set out the obligations of employees and sought to regulate behaviour at work and in the village. The case also highlights that it is important to enforce behavioural standards in order to set the standard; in this matter, to discourage undesirable, violent or anti-social behaviour the employer enforced behavioural expectations by consistently initiating disciplinary action against individuals involved.

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